the solution

Recent Cases: Commonwealth

Hutchinson and Comcare (Freedom of Information) [2022] AATA 2435 (2 August 2022)

Ms. Hutchinson (“applicant”) made an application to the Administrative Appeals Tribunal (“Tribunal”) seeking review of a decision that was made by the Information Commissioner (“Commissioner”). 

The Commissioner affirmed a decision made by Comcare (“respondent”) to refuse access to a document.  The basis for the refusal was that the document was subject to legal professional privilege and was therefore exempt under s 42 of the Freedom of Information Act 1982 (Cth) (“FOI Act”). 

 

The issue for the Tribunal was whether the document was exempt from release under s 42 of the FOI Act.

 

Legal professional privilege: s 42

Section 42(1) of the FOI Act provides that a document is exempt if it is subject to legal professional privilege:

A document is an exempt document if it is of such a nature that it would be privileged from production in legal proceedings on the ground of legal professional privilege.

 

The Tribunal relied on an earlier case which relevantly explained that common law concepts of legal professional privilege are applicable to s 42 of the FOI Act:

 

“The test to be applied under s 42 of the Act is that which applies under the common law which involves:

(a) examination as to whether there is a lawyer client relationship;

(b)whether the document in question was crated for the dominant purpose of giving or receiving legal advice or for use in actual or anticipated litigation;

(c) whether the advice is independent; and

(d) whether the advice is confidential.”

 

The Tribunal considered each element and found: 

  • The requirement for there to be a legal adviser-client relationship was satisfied. The document was a letter of advice from an external law firm engaged by the respondent, which provided legal advice to a Principal Legal Advisor in the respondent’s Legal Group.
  • The advice was independent in nature as evidenced by the objective and impartial nature of the advice. 

HELD

The Tribunal was therefore satisfied that the document was subject to legal professional privilege and exempt under s 42 of the FOI Act.   The decision of the Commissioner was affirmed.

 

William Summers and Department of the Prime Minister and Cabinet (Freedom of Information) [2022] AICmr 59 (12 August 2022)

Mr Summers (“applicant”) made a request to the Department of the Prime Minister and Cabinet (“department”) for access to documents under the Freedom of Information Act 1982 (Cth) (“FOI Act”).

 

The department advised the applicant that it had identified one document falling within the scope of the request.  The document was a letter from the former Prime Minister to the former Secretary of the Department, requesting advice on whether the former Minister for Agriculture had breached any standards set out in the Statement of Ministerial Standards (August 2018) as a result of their administration of the Community Sports Infrastructure Grant Program. 

 

The department decided to refuse access to the document in full on the basis that it was exempt under the Cabinet documents exemption (s 34(3) of the FOI Act).

The applicant subsequently made an application for review to the Office of the Australian Information Commissioner seeking review of the department’s decision.

During the course of the review, the department contended that the conditional exemption under s 47E(d) of the FOI Act also applied to the document.

 

The issues for the Information Commissioner (“IC”) were:

  • whether the document that the department found to be exempt under s 34(3) of the FOI Act was exempt under that section; and
  • whether the document that the department submitted as conditionally exempt under s 47E(d) of the FOI Act was conditionally exempt under that section; and
    if the document was conditionally exempt, giving the applicant access to the document would, on balance, be contrary to the public interest.

Cabinet Documents: s 34(3)

The department found the document to be exempt in full under s 34(3) of the FOI Act on the basis that disclosure of the information contained in the document would reveal Cabinet deliberations which had not been officially disclosed.

The department provided the IC with a copy of the Minutes of the relevant meeting of the Governance Committee of Cabinet.

The IC accepted that the subject matter that was dealt with during the relevant meeting of the Governance Committee of Cabinet pertained to the topic that was raised in the document.  The IC accordingly accepted that there was, in that sense, an ‘alignment’ between the relevant conduct or activity of the Committee and the contents of the document.

 

The department contended that this was sufficient to enliven the operation of s 34(3) of the FOI Act – that s 34(3) of the FOI Act applies in circumstances where a document has been put before Cabinet, and subsequent deliberations by Cabinet ‘align’ with the content of that document.

The IC disagreed, outlining that the department’s contention misunderstood the provision’s meaning.  Section 34(3) of the FOI Act must be read in the context of s 34 of the FOI Act as a whole.  The department’s interpretation of s 34(3) of the FOI Act would render the dominant purpose requirement in s 34(1)(a) of the FOI Act largely if not wholly redundant. 

 

The IC found:

  • the operation of s 34(3) of the FOI Act in relation to a document submitted to Cabinet is not attracted simply because the contents of the document can be said to pertain to (in the sense of align with) the subject matter of a Cabinet deliberation. Rather, it must be shown that careful thought and discussion had taken place in Cabinet, and disclosure of the document would reveal those thoughts and discussions; and 
  • section 34(4) of the FOI Act is not concerned with the exemption of a document by virtue of that document having been submitted to Cabinet for consideration (that is what the exemption in s 34(1)(a) of the FOI Act is directed to).  Rather, it is concerned with whether the contents of a document themselves disclose a Cabinet deliberation or decision such that disclosure of the document, or a relevant part or parts of the document, would reveal the actual deliberation which occurred or decision that was made. 

Based on the above, the IC was not satisfied that disclosure of the document would reveal anything more than the topic discussed in the Governance Committee of Cabinet meeting, and consistent with the nature of the document as already disclosed, disclosure of the document itself would not reveal any actual deliberation of Cabinet. 

As the IC found that disclosure of the document would not reveal a Cabinet deliberation, it was not necessary to consider whether the existence of the deliberation had been officially disclosed.

 

Certain operations of agencies exemptions: s 47E(d)

A document is conditionally exempt under s 47E(d) of the FOI Act if its disclosure would, or could reasonably be expected to, have a substantial adverse effect on the proper and efficient conduct of the operations of an agency.

The department contended that disclosure of the document would breach Cabinet confidentiality and impact on its ability to support the operations of the Cabinet.

Having already found that the document did not contain any information the disclosure of which would reveal a Cabinet deliberation (or which could have been the subject of deliberation by Cabinet), the IC also noted that the existence of both the document and its contents had already been publicly disclosed by the former Prime Minister. On that basis, the IC did not accept that its disclosure would breach Cabinet confidentiality.

Further, that the detail of the request for advice was well publicised through various press conferences given by the former Prime minister.

Accordingly, the IC found that disclosure of the document would not have a substantial adverse effect on the proper and efficient conduct of the operations of the department as suggested by the department

 

HELD

The IC was satisfied that the document was not exempt under ss 34(3) and 47E(d) of the FOI Act.  The department’s decision was set aside.

[1] [2015] AATA 728 at [10].